State v. Guglielmo

• Decision Date: 20 February 1905
• Citation: 79 P. 577,46 Or. 250
• Parties: STATE v. GUGLIELMO.
• Court: Oregon Supreme Court

79 P. 577

46 Or. 250

STATE v. GUGLIELMO.

Supreme Court of Oregon

February 20, 1905

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Frank Guglielmo was convicted of murder in the first degree, and he appeals. Affirmed.

Dan R. Murphy and Ralph E. Moody, for appellant.

A.M Crawford, Atty. Gen., and John Manning, Dist. Atty., for the State.

MOORE J.

The defendant, Frank Guglielmo, was informed against, tried, and convicted of the crime of murder in the first degree, alleged to have been committed in Multnomah county June 14, 1904, by killing one Freda Guarascia, and from the judgment which followed he appeals.

It is insisted by his counsel that the court erred in denying their motion to set aside the information on the ground that it violated the fourteenth amendment of the Constitution of the United States, and was also repugnant to section 18 of article 7 of that of this state. It is argued that these sections of organic law guaranty to every suspected person the right to be charged by indictment found and returned by a grand jury, before he can be required to plead; that, though our state Constitution authorizes the Legislature to "modify or abolish" grand juries, it must do so either by increasing or diminishing the number of "the most competent of the prominent citizens of the county" of which that body is composed ( State v Lawrence, 12 Or. 297, 7 P. 116; Zabriskie v Hackensack, etc., Ry. Co., 18 N.J.Eq. 178, 90 Am.Dec 617), or by totally abrogating the system; that the act of February 17, 1899 (B. & C.Comp. §§ 1258-1264), empowering the trial court to convene a grand jury, demonstrates that such inquisitorial body has not been abolished, nor has it been modified, for the authority attempted to be conferred by that act upon the district attorney to charge the commission of crimes by information only is the substitution of a single person, not chosen in the manner prescribed by the fundamental law of this state for the selection of grand jurors. This question was duly considered in the case of State v. Tucker, 36 Or. 291, 61 P. 894, 51 L.R.A. 246, and decided adversely to the defendant's contention; and, believing that the conclusion there reached is supported by reason and authority, we adhere to and reaffirm the legal principles thus announced. Hurtado v. California, 110 U.S. 516, 4 Sup.Ct. 292, 28 L.Ed. 232; Bolln v. Nebraska, 176 U.S. 83, 20 Sup.Ct. 287, 44 L.Ed. 382. In In re Boulter, 5 Wyo. 329, 40 P. 520, Mr. Chief Justice Groesbeck, in a very able opinion, answers the questions presented by defendant's counsel on this branch of the case, and shows that the doctrine contended for herein is without merit.

The defendant, never having had or waived a preliminary examination, was charged with the commission of the alleged crime by an information not sworn to by any person, upon filing which the court ordered a bench warrant to be issued for his arrest, though he was then in custody; having been apprehended for the crime with the commission of which he was charged. It is maintained by his counsel that this warrant was issued without probable cause, because it was not supported by oath or affirmation, and that an error was committed in overruling the motion to set aside the information, based on the ground that it violated section 9 of article 1 of the Constitution of this state, prohibiting the issuing of warrants for the arrest of any person, except upon probable cause, supported by oath or affirmation. At common law the commission of crimes was charged either by indictment or information, depending in most instances upon the grade of the offense. An indictment was an accusation at the suit of the sovereign, based on the oath of 12 men of the county wherein the offense was committed. 2 Hawk. P.C. 287. The form usually prescribed for the commencement of an indictment was, after stating the venue, as follows: "The jurors for our lady the Queen upon their oath present," etc. 1 Archbold, Crim.Pr. & Pl. *76. Sir Matthew Hale, in speaking of the caption of a written accusation, and of the necessity of stating therein the oath of the jurors, says: "It must return that the indictment was made per sacramentum." 2 Hale's P.C. 167. The form of indictment prescribed by the Legislative Assembly of this state omits a recital of the oath of the grand jurors. B. & C. Comp. § 1304. Before the grand jury can enter upon the discharge of their duties, however, an oath is required to be administered to them, the form of which is also ordained. Id. § 1271. It has been repeatedly held in this state that the form of indictment given in the statute was sufficient. State v. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State v. Brown, 7 Or. 186; State v. Lee Yan Yan, 10 Or. 365; State v. Ah Lee, 18 Or. 540, 23 P. 424. In civil actions it is unnecessary to allege a fact which the law will presume. Bliss, Code Pl. (3d Ed.) § 175. It will be presumed that official duty has been regularly performed (B. & C. Comp. § 788, subd. 15); and hence, arguendo, it would seem that an indictment complying with the form recommended by the Legislative Assembly, though omitting a recital therein of the oath of the grand jurors, was sufficient.

At common law an information was a surmise or suggestion upon record, made on behalf of the sovereign to a court of criminal jurisdiction, charging a person with the commission of a misdemeanor. Wilkes v. The King, 6 Brown, Parl. Cases, 345; United States v. Tureaud (C.C.) 20 F. 621. "Informations," says a text-writer, referring to such accusations made under the ancient rule, "are of two kinds: First, such as are merely at the suit of the King secondly, such as are partly at the suit of the King, and partly at the suit of the party." 2 Hawk. P.C. 356. Blackstone, speaking of criminal informations, in distinguishing the two kinds, exhibited in the name of the King, says: "First, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the Attorney General; secondly, those in which, though the King is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the King's coroner and attorney in the Court of King's Bench, usually called the 'Master of the Crown Office,' who is for this purpose the standing officer of the public. The objects of the King's own prosecutions, filed ex officio by his own Attorney General, are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offenses so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of immediate prosecution, without waiting for any previous application to any other tribunal, which power, thus necessary not only to the ease and safety, but even to the very existence, of the executive magistrate, was originally reserved in the great plan of the English Constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations filed by the master of the crown office upon the complaint or relation of a private subject are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of any atrocious kind, not peculiarly tending to disturb the government (for those are left to the care of the Attorney General), but which, on account of their magnitude or pernicious example, deserve the most public animadversion." 4 Bl.Com. *308. In the reign of Henry VII, the remedy by information, exhibited on leave of court by the master of the crown office, became the means of great oppression to the subjects of England, and so continued with little abatement until 4 and 5 William and Mary, c. 11, and c. 18, which provided, in effect, that the clerk of the crown, in the court of the King's Bench, should not, without express authority, to be given by the court when in session, exhibit, receive, or file any information for any of the causes for which it was allowable, nor issue any process thereon, without taking a recognizance from the person procuring such information to be exhibited, but that the act should not extend to any other information than such as should be exhibited in the Court of King's Bench by the master of the crown office. 2 Hawk. P.C. 358. This learned author, after quoting the acts, the substance of which is here given, makes the following declaration: "From whence it follows that informations exhibited by the Attorney General remain as they were at the common law." In King v. Jolliffe, 4 Durn. & E. 285, Lord Chief Justice Kenyon, referring to the act regulating the exhibition of informations by the master of the crown office, says: "Before the statute 4 & 5 W. & M. c. 18, it was in the power of any individual to file an information, without disclosing to the court the grounds on which it was exhibited. But that practice being attended with the inconveniences recited in the preamble to that statute, it was enacted that no information should be filed without the express order of the court, publicly given. That statute does not enumerate the grounds which are sufficient to enable us to grant the information, but the Legislature left it to our discretion, trusting that we should not so far transgress our duty as to go beyond the rules of sound discretion. In ordinary cases affidavits are sworn in the court for the express purpose of praying an information upon them, but that does not preclude us from granting an information on affidavits equally authentic, although not made for that purpose." Sir James Fitzjames Stephen, in his History of the Criminal...